Analysis
13 July 2023

The French Supreme Court confirms in its decision “La Chaufferie de La Défense” that the excessive duration of criminal proceedings does not automatically lead to their cancellation

In a decision dated 9 November 2022, the criminal chamber of the French Supreme Court confirmed its case law on the disregard of the reasonable time limit and its potential consequences on the rights of the defense, reasserting that it has no impact on the validity of the proceedings. However, it stated that the criminal court, when determining the excessive duration of the proceedings, must nonetheless examine the merits of the case.

La Chaufferie de La Défense” case began in 2002 with a report from the direction départementale de la concurrence, de la consommation et de la répression des fraudes of Hauts-de-Seine département regarding the conditions for renewing the public service delegation for the production and distribution of heating in La Défense neighborhood.[1] The mayor of the locality, who was also the president of the delegating intermunicipal syndicate, was suspected of having approved, through the syndicate, the decision to enter into negotiations only with a specific company in exchange for the payment of hidden cash commissions between June 2001 and January 2002.[2]

A judicial investigation was then opened for charges of corruption and influence peddling. Several additional requisitions were issued between 2004 and 2005 for offenses such as concealment, misuse of corporate assets and complicity in this offense, favoritism, collusion, and concealment of these offenses, as well as forgery and use of forged documents.[3]

During this investigation, six individuals, one of whom passed away in 2019, were placed under an investigation procedure. On 7 November 2019, the investigating judge ordered the referral of several of them to the criminal court. However, on 11 January 2021, the criminal court cancelled the entire procedure due to the violation of the right to be tried within a reasonable time caused by the excessive duration of the investigations.[4] The public prosecutor and the plaintiffs then filed an appeal.[5]

The Versailles court of appeal, upheld the cancellation of the prosecution on 15 September 2021, noting the unreasonable nature of the proceedings.[6] The court emphasized the resulting infringement on the right to a fair trial, the principle of adversarial proceedings, the balance of the parties’ rights, as well as the rights of the defense.[7]

Challenging the cancellation of these prosecutions, the Procureur de la République (“public prosecutor”) filed an appeal before the Cour de Cassation (“French Supreme Court”), alleging, among other things, the violation of preliminary articles, 427, 591, 593, and 802 of the criminal procedure code.[8] The public prosecutor argued, firstly, that the disregard for the reasonable time limit to decide on a person’s accusation does not necessarily undermine the principles of the criminal justice and the rights of the defense, nor irreparably compromise the fairness of the trial and the balance of the parties’ rights, and in any case, has no direct impact on the validity of the proceedings.[9] Secondly, the public prosecutor emphasized that the inability to personally question incriminating witnesses or co-defendants, or allow the parties to question them or have them questioned, does not automatically lead to the invalidation of the procedure and does not necessarily violate the rights of the defense.[10]

Referring to article 6§1 of the European Convention on Human Rights, which relates to the right to a fair trial, as well as the preliminary articles and article 802 of the criminal procedure code, the French Supreme Court quashed and cancelled the judgment rendered by the court of appeal.[11] The French Supreme Court found that the court of appeal had erroneously deduced from article 6§1 and the preliminary article of the criminal procedure code that it should cancel the prosecutions,[12] and had not ruled on the merits of the charges based on the evidence presented in accordance with article 417 of the criminal procedure code.[13]

With this decision, the French Supreme Court reaffirmed its consistent case law according to which the disregard of the reasonable time limit and its potential consequences on the rights of the defense have no impact on the validity of the proceedings (I). It also stated that these rules do not violate any conventional international principle (II). Finally, it emphasized that the criminal court, when determining the excessive duration of the proceedings, cannot refrain from examining the case on its merits to take this situation into account (III).

I. The disregard of the reasonable time limit and its potential consequences on the rights of the defense have no impact on the validity of the proceedings

While the French Supreme Court had consistently affirmed since 1993 that exceeding the reasonable time limit had no impact on the validity of the procedure,[14] the criminal court[15] and the Versailles court of appeal,[16] in this particular case, invalidated the entire procedure after determining that it violated the standard of a reasonable time limit, thereby precluding consideration of the case merits.

Applying its consistent case law, the French Supreme Court, in La Chaufferie de La Défense case, held that exceeding the reasonable time limit could not lead to the cancellation of the proceedings or constitute a ground for extinguishing public prosecution.[17]

In this respect, the French Supreme Court stated that failure to respect the right to be tried within a reasonable time does not constitute a violation of a public order rule, nor a violation of a procedural rule prescribed by law under penalty of nullity, nor even a failure to comply with a substantial formality within the meaning of article 802 of the criminal procedure code.[18]

It also recalled that when the court is seized by the investigating judge’s order for referral to the criminal court, the parties are not allowed to raise objections of nullity arising from previous proceedings, provided that the said order remedies all procedural defects.[19]

Finally, the French Supreme Court stated that the excessive duration of a procedure cannot result in its complete invalidation, when each of the acts constituting it is intrinsically regular.[20]

By deciding to cancel the trial on the grounds that it was unfair, without ruling on its merits, the court of appeal thus disregarded the applicable law and the principle that disregard of a reasonable time limit and its possible consequences on rights of the defense have no impact on the validity of the proceedings.[21]

 

II.   Compliance of the French Supreme Court decision with international law

 

The French Supreme Court took care to specify that its position is in line with international law,[22] as the European Court of Human Rights never considered that disregard of the right to be tried within a reasonable time constituted an infringement of the rights of the defense.[23] In this regard, it referred to the Hiernaux v. Belgium case of 24 January 2017, in which the European Court of Human Rights held that domestic remedies available to individuals to complain about the length of proceedings are effective within the meaning of article 13 of the European Convention on Human Rights, as long as that they make it possible either to provide an earlier decision by the courts seized or adequate remedy for the delays already suffered by the litigant. [24]

The French Supreme Court then listed the remedies available under domestic law, stating firstly that, at the investigation stage, the parties may, subject to certain conditions in the criminal procedure code, refer the matter to the investigating chamber, which may itself proceed with the investigation, close it or entrust it to another investigating judge.[25] Additionally, a party may also ask the investigating judge to close the investigation in accordance with the criminal procedure code.[26] Finally, the judicial organization code provides the possibility for the party to hold the French State liable in case of defective functioning of justice service, especially when the reasonable time limit is exceeded.[27]

III.  The merits of the case require assessment by trial judges when the proceedings are excessively lengthy

 

The French Supreme Court stated that although failure to observe the reasonable time limit does not compromise the rights of the defense, the possible consequences of such disregard must be considered at the stage of the judgment on the merits.[28]

In this regard, the French Supreme Court discussed the legal means available to the trial judges to consider the excessive duration of a procedure.[29] Firstly, the judgment referred to article 427 of the criminal procedure code, which enounces that it is the role of the trial judge to assess the probative value of the evidence submitted and discussed before them in an adversarial manner. In doing so, the judge must consider the potential deterioration of evidence due to the passage of time, and the resulting impossibility for the parties to discuss its value and significance.[30] The Court de Cassation stated that the deterioration of evidence may, where appropriate, lead to a decision to acquit.[31]

Furthermore, it stated that according to article 10 of the criminal procedure code, in the presence of plaintiffs, where the judge finds that the mental or physical state of the defendant makes it permanently impossible for them to appear in person in conditions allowing them to defend themselves, the judge may, on their own initiative or at the parties’ request, decide, after having ordered an expert report to establish this impossibility, that a hearing will be held to rule solely on the civil action, after having noted the suspension of the public prosecution and postponed its decision.[32]

Lastly, the French Supreme Court stated that in applying the criteria for individualizing sentences set out in article 132-1 of the criminal code, the court may determine the nature, quantum, and conditions of the penalties imposed, considering the potential consequences of the excessive delay and, where appropriate, exempt the defendant from punishment.[33]

The French Supreme Court, while agreeing with the finding of the lower courts regarding the excessive length of these proceedings, censured the consequences they drew from it, for not having ruled on the merits of the prosecution.[34] Consequently, it referred the case and the parties back to the Versailles court of appeal, differently composed.[35]

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